If your client desired an itemised costs list, and is not prepared to agree to the figure proposed, we propose to send the file to Hickey & Garrett Legal Costs Consultants for independent review. Please note that if the file is independently assessed your client will also be liable for the cost of that assessment, which in our experience is usually in the order of $800.

Our client instructs that he wishes for the file to be independently assessed for costs by Hickey & Garrett Legal Costs Consultants, and requires an itemised bill of costs. Would you please confirm with us once the file has been sent to Hickey & Garrett for its assessment.[1]

[14] The Board's solicitors engaged Hickey & Garrett to prepare a bill, and in due course, a bill was received totalling $41,657.09, along with an invoice for $3,960 for the cost of preparing the assessment. They sent both bills to Dr Cruceru's solicitors, expressing the opinion that as Dr Cruceru "wished the Board's files to be assessed" , he should be liable for those costs. The Board demanded that Dr Cruceru pay $45,617.09.

[15] A further demand was made on 4 June 2015, foreshadowing an application to QCAT.

[16] On 24 June 2015, Dr Cruceru's solicitors replied, stating reasons why they considered the bill to be excessive. Various items were canvassed, and it was argued that the charge for perusal of disclosed documents was at least $3,000 too high, that the care and consideration item ($5,900) should be reduced by 60% and that their client had relied on the $800 estimate for costs of assessment in deciding whether to press for an assessment. In short, complaints were raised to the extent of about $7,000 of the total claimed.

[17] A month later (on 24 July 2015) the Board's solicitors applied to QCAT for an order that Dr Cruceru pay its costs of the application fixed at $45,617.09.

[18] The application was accompanied by an affidavit from the Board's solicitor, giving a short history of the matter, and "Submissions in support of miscellaneous application".

[19] Those submissions included:

1. The parties attempted to engage in negotiations regarding costs. However no agreement was reached on a costs sum ...

2. Pursuant to correspondence as annexed ... the Board submits that there was agreement between the parties that the costs pursuant to the Tribunal's orders would be fixed as assessed by Hickey & Garrett ...

3. As the costs assessment has been undertaken by an independent cost assessor, at the agreement of the parties, the Board submits that the Tribunal should accept the Hickey & Garrett costs assessments annexed to the affidavit... for the purposes of rule 87(2)...

[20] Following Dr Cruceru's receipt of the application and accompanying material, his solicitors asked the Board's solicitors whether there was a return date for it.[2] The Board's solicitors responded that the QCAT Registry had informed that the application and affidavit would be given to the Judge and that "any directions would follow". The letter ended with the advice, "in the circumstances, we suggest that you contact the Registry regarding your client's instructions".[3]

[21] Dr Cruceru's solicitor had staff shortage problems at the time, and took no further action at that stage. In particular, no written response was made on Dr Cruceru's behalf within the prescribed period of 28 days, and no contact was made with QCAT or any indication given that it was intended to contest the application.

[22] On 10 August 2015, the matter came before the Deputy President who apparently read the applicant's material. His Honour concluded that no directions were necessary, and proceeded to make the order that Dr Cruceru pay the costs as assessed by Hickey & Garrett. His Honour did not publish reasons for the order.

[23] Dr Cruceru through his solicitors claims to be aggrieved by that order, and seeks that it be reopened.

[24] The prescribed time for bringing any application to reopen such an order was 28 days after its receipt by the respondent.[4] It was received on 12 August 2015, and the present application was filed on 7 October 2015, which means that it was 28 days late.

[25] Hence the need for an extension of time if the reopening application is to be heard.

[26] This is not a case to which the prohibition in s 61(3) of the QCAT Act[5] applies, as orders for costs would be capable of remedying any relevant prejudice or detriment caused to the Board by granting the extension.

[27] That being so, the factors relevant to an application for extension of time are conveniently summarised in Crime and Misconduct Commission v Chapman & Anor [2011] QCAT 229 at [9]. It is unnecessary to repeat them here, but some relevant factors will be mentioned below.

[28] First of all, it is necessary to consider whether a reasonably arguable case is shown for granting a reopening.[6]

[29] Certain requirements are specified for the making of a "reopening order" under the QCAT Act, notably in ss 136-141.

[30] The power to reopen a proceeding is limited to two situations, each of which is described as a "reopening ground".[7] The only grounds are:

1. the party did not appear at the hearing of the proceeding and had a reasonable excuse for not attending the hearing; and

2. the party would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided.

[31] Broadly speaking, the specified reopening grounds mirror two of the recognised areas in which courts have traditionally been prepared to set aside regularly obtained judgments: namely judgments by default (as, for example, where a party fails to appear and judgment has been given without determination on the merits), and cases where fresh evidence has been discovered that was not reasonably available before determination of the matter. In all such matters the court exercises a discretion, and a considerable body of case law reveals the factors that have influenced the outcome in such applications.[8]

[32] To the extent that ss 136-141 permit, one would expect the Tribunal in the exercise of its discretion generally to act on similar factors and principles to those that the courts have found to be persuasive.

[33] The legislation that confers this power on QCAT to reopen is terse. Leaving aside some elementary procedural requirements, the only fetter placed on the Tribunal's power to reopen a proceeding is expressed in s 139(4):

(4) The tribunal may grant the application only if the tribunal considers -

(a) a reopening ground exists for the applicant party; and

(b) the ground could be effectively or conveniently dealt with by reopening the proceeding under this division, whether or not an appeal under part 8 relating to the ground may also be started.

[34] Apart from those two conditions, which are conditions precedent to the grant of such relief, the discretion is unfettered. Satisfaction of the conditions precedent does not mean that the application must be granted, although in the normal course one would expect the order to be made unless something else appeared that caused concern. However, a discretion remains to be exercised by the Tribunal. Satisfaction of the conditions in s 139(4) simply means that the applicant is entitled to a fair discretionary consideration of whether the matter should be reopened.

[35] As indicated above, it is to be expected that the Tribunal will bear in mind the experience of the Courts in their exercises of similar discretions. It may be noted that a default judgment would not be set aside when there was no basis for thinking that there might be a defence on the merits to the claim. Similarly, the absence of reason for thinking that the decision may be wrong may be an influential factor in refusing to set it aside.[9]

[36] The relevant reopening ground for present purposes is:

(a) the party did not appear at the hearing of the proceeding, and had a reasonable excuse for not attending the hearing.[10]

[37] This case would meet that requirement, as Dr Cruceru's non-appearance and the ensuing judgment were the result of "representative error" and other factors beyond his personal control. He therefore has a reopening ground that satisfies the requirement of s 139(4)(a).

[38] The further requirement under s 139(4)(b) QCAT Act is that the Tribunal considers that "the ground could be effectively or conveniently dealt with by reopening the proceeding under this division". This is a puzzling provision. The concept of effectively or conveniently "dealing" with a ground by allowing the application seems circular, and it is difficult to see how notions of effectiveness or convenience arise. However, more sense can be made of the provision if one focuses on the imposition of conditions upon which the application might be granted. If the Tribunal is satisfied that relevant prejudice or detriment suffered by the respondent from a reopening can be sufficiently covered by payment of costs and/or by the imposition of suitable conditions, notions of effectiveness and convenience do arise, and sense can be made of the subsection. On this view, s 139(4)(b) is satisfied whenever terms and conditions may be imposed that conveniently and effectively cover the respondent against irrevocable prejudice.

[39] An alternative view is that the reference to "the ground" is elliptical, and makes sense if construed as "the effect of the ground". On that basis one would need to consider the effect of the applicant's non-appearance in the original application, and whether reopening the proceeding would be a convenient and effective remedy. For example, if the applicant could not have shown a proper defence on the merits, there would be neither convenience nor effectiveness in reopening the matter.

[40] I consider that the first view (that stated in para [38]) is to be preferred. I would add that on that view, for reasons stated hereunder, Dr Cruceru satisfies the requirements of s 139(4)(b), but that on the alternative view he does not.

[41] I shall therefore discuss the matter on the footing that the conditions precedent in s 139(4) are satisfied, and will look at the full picture including the submissions that are now offered on Dr Cruceru's behalf. The question remains whether in the circumstances the Tribunal's discretion should be exercised in favour of reopening the matter.

[42] Dr Cruceru's solicitors submit that the costs fixation application and order were made on an erroneous basis, namely that Dr Cruceru had agreed to the fixing of costs in accordance with a costs statement to be prepared by Hickey & Garrett.

[43] It is true that one of the Board's submissions[11] (as set out in the annexure to the application) was to that effect, and in my view that submission was erroneous.

[44] The dealings between the parties could not properly be construed as constituting agreement by Dr Cruceru that he would be bound by whatever bill Messrs Hickey & Garrett might draw up. There was simply a request that a formal bill be prepared by a designated firm.

[45] However, there is no reason to think that his Honour's judgment was a consequence of that particular submission. The submission was prefixed by the words "pursuant to the correspondence as annexed", and any perusal of that correspondence would show that that particular submission lacked substance. If Dr Cruceru's solicitors wished to demonstrate that acceptance of that submission was a factor in his Honour's determination, they had the right to request written reasons under s 122 of the QCAT Act, but did not do so.

[46] The normal process in such a situation is an application to QCAT under that rule to fix the costs or otherwise order their fixation or method of fixation. That is what the Board did.

[47] Section 107 of the QCAT Act[12] contemplates that the Tribunal will itself fix the costs whenever possible. It also empowers the Tribunal to make an order for the costs to be assessed "under the rules".

[48] The prescribed rules are quite brief.[13] Relevantly, rule 87 states:

(1) This rule provides for how costs are to be assessed under section 107 of the Act if the tribunal makes a cost order that requires the costs to be assessed under the rules.

(a) by an assessor appointed by the tribunal; and

(b) if the tribunal directs that costs be assessed by reference to the scale of costs applying to a court - by reference to the scale of costs, directed by the tribunal.

[49] Having regard to the objects of the QCAT Act, the discretion to fix costs under s 107 is an extremely wide one and is to be exercised robustly. The fixation of a round or approximate sum will often be a preferable option to increasing costs and wasting money and effort in the production of itemised assessments. However, in the present case an itemised assessment was already available, and his Honour fixed them at that figure.

[50] The most obvious conclusion in this case is that the decision was based on the Board's ultimate submission in the application, under the heading "Submissions on law", namely:

1. As the costs and assessment has been undertaken by an independent cost assessor, at the agreement of the parties, the Board submits that the tribunal should accept the Hickey & Garrett costs assessments annexed to the affidavit ... for the purposes of rule 87(2).

[51] The order actually made appears to be, with respect, obviously correct. The stage had been reached where the probable cost of any further forensic testing of the bill was likely to exceed the maximum amount potentially in issue. In those circumstances an order fixing costs at the amount of the bill that had already been prepared by a reputable costs assessor at the request of both parties was, I think, inevitable.

[52] It is contended on behalf of Dr Cruceru that the consequences of "representative error" by his solicitor should not be held against him. That is correct. However, no case has been foreshadowed on his behalf that appears to have been capable of producing a different result had it been presented to the Tribunal.

[53] I have also considered whether the material might have given the overall impression that this was a virtual consent order, thereby inducing the Tribunal to abstain from giving directions for both parties to file material. In the first place, no basis appeared for initiating such a contest for a party who had not appeared; and secondly, I do not think that the material was capable of giving any impression that this was a virtual consent order. The Board's submissions expressly mentioned that negotiations had failed to reach any agreement on a costs sum.

[54] I am unable to conclude that the process miscarried, or that his Honour was induced to make the order he did on the basis of what I have termed "the erroneous submission". Nor am I satisfied that any different result would have been reached had directions been given and Dr Cruceru's solicitor had demonstrated that the Board's submission number 9[14] was erroneous.

[55] Erroneous or overstated submissions are no rare phenomenon. They are an unavoidable consequence of the adversarial system. Looking at the Board's application and submissions for fixation of the costs as a whole, I am not satisfied that the determination was based on any ground other than the obviously correct conclusion that the Hickey & Garrett assessment, which had come into existence with the agreement of both parties, was an appropriate one for the Tribunal to use to fix the costs that were to be paid.

[56] Further, the additional costs that would be thrust upon Dr Cruceru if the reopening were to be granted would very likely exceed the amount of any benefit foreshadowed on his behalf. A necessary condition of granting a reopening would be that Dr Cruceru pay on an indemnity basis the costs thrown away on the original application. That could raise further questions and proceedings concerning his solicitor's liability to meet them. Additionally the likely costs of a full-scale contest over the reasonableness of the Hickey & Garrett bill would include the engagement of a further professional expert or experts called by either or both sides. The capacity for escalation in costs disputes is great. The probabilities are that wasted costs would considerably exceed any foreshadowed benefit to Dr Cruceru.

[57] In this situation the discretion to reopen should not be exercised to permit further futile and uneconomic litigation.

[58] No error or miscarriage of justice has been shown in the order that is now challenged. Any reopening of that order would seem to be fruitless and undesirable.

[59] It is unnecessary to consider the other criteria relevant to extension of time as listed in Chapman (above), although it is fair to say that if I thought that there is a good case for reopening the costs fixation order, other factors would not stand in the way of granting an extension of time. The length of the delay (28 days) is quite short, and no relevant prejudice would attend the opposite party except the protraction of the proceedings and increase of costs.

[60] However, for the reasons stated above, I do not think any utility, effectiveness or convenience would be achieved by granting a reopening.

[61] I note, and trust that both parties will note, that any further proceedings would almost certainly be to the financial disadvantage of both parties.

[62] Accordingly, the following orders are made:

1. Nicolae Cruceru's application for extension of time is refused; and
2. Nicolae Cruceru's application for the reopening of the order of the Deputy President dated 10 August 2015 is dismissed.

[4] QCAT Act, s 138; Queensland Civil and Administrative Tribunal Rules 2009 (Qld) ("QCAT Rules"), r 92.

[5] QCAT Act, s 61(3) states: "The Tribunal can not extend or shorten a time limit or waive compliance with another procedural requirement if to do so would cause prejudice or detriment, not able to be remedied by an appropriate order for costs or damages, to a party or potential party to a proceeding".

[6] Compare QUYS Pty Ltd v Marvass Pty Ltd [2008] QCA 257; (2009) 1 Qd R 41.

[8] Cf Biddle v Formosa [2000] QCA 366 at [17], [18], which reveals a number of discretionary factors that may be of influence.

[9] Biddle v Formosa [2000] QCA 366 at [19].

[11] Submission no 9, set out in para [19] above.

(1) If the Tribunal makes a costs order under this Act or an enabling Act, the Tribunal must fix the costs if possible.

(2) If it is not possible to fix the costs having regard to the nature of the proceeding, the Tribunal may make an order requiring that the costs be assessed under the Rules.